Triyugi Narayan Gupta vs State of U.P. Thru. Prin. Secy. Home Lko.

Heard submissions of Sri Mukesh Kumar Tiwari, learned counsel for the appellant, Shri Saurabh Tiwari, Advocate appearing for the first informant, learned AGA for the State respondent and perused the record.

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Instant criminal appeal, filed under Section 374(2) read with Section 389 of the Code of Criminal Procedure (now Section 415(2) read with Section 430 of BNSS, 2023), has been preferred against the judgment and order dated 31/01/2026 passed by the learned Sessions Judge, Gonda in Sessions Trial No.53 of 2016, CNR No. UPGD01001047-2016, Case Crime No.203 of 2012, under Section 307/34 IPC, registered at Police Station Motiganj, District Gonda, State versus Nirmal Srivastava @ Rupesh Kumar, whereby the appellant has been convicted under Section 307/34 IPC and sentenced to 15 years rigorous' imprisonment with a fine of Rs.50,000/-, and in default of making the fine, he shall undergo one year's additional simple imprisonment.

¶13

Learned counsel for the appellant submitted that, according to the prosecution's version, the incident occurred on 10/09/2012 at around 10:00 PM. When the informant was sitting inside the ahata in his house and eight co-villagers were watching TV. His brother, Gaurav Shukla, went outside the gate to answer call of nature. Whereupon, he saw light of two motorcycles on the internal road of the village. He stood on the gate. One motorcycle went in the village and the other stopped on the gate. The motorcycle was being driven by Triyogi Narayan Gupta and Nirmal Srivastava alias Rupesh Kumar, was the pillion riders. Appellant Nirmal Srivastava open fired on his brother Gaurav Shukla, with intention to kill, but he laid down on the earth to save himself. Hearing the sound of fire, the persons watching TV came out and witnessed the incident. Nirmal, the brother of the informant, Gaurav Shukla, sustained fire injuries on his thigh, from which blood was oozing. The injured was rushed to the hospital for treatment. The FIR was lodged after 12 hours of the incident, on the next day i.e. 11/09/2012 at 12:40 hours, against named accused persons. After eight months of the

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incident, on 02.05.2013, PW-9, Dr. Rajesh Kumar Pandey, operated upon the thigh of the injured Gaurav Shukla, where he received injuries in the incident and extracted a foreign metallic body from the seat of the wound and handed over the said material to constable who brought the injured.

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He next submitted that the appellant has been falsely implicated in the case. He is a political person and was chairman of the Nagar Palika Parishad at the time of the incident. No independent witness has been examined in support of the prosecution version. Out of the three witnesses of fact, PW-1, Sushil Shukla, is the complainant and PW-2, Gaurav Shukla, is the injured and his brotherand P.W.-3 Romy Shukla, the cousin of the injured. P.W.-9 Dr. Rajesh Kumar Pandey, who allegedly extracted a foreign metallic body from the seat of the wound after about 8 months of the incident. On 02/05/2013 P.W.-9 could not produce any record of the said surgical operation. Neither he produced any police paper for extraction of the said foreign metallic body from the seat of the wound after such a long period, this fact has lost significance.

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He next submitted that in the injury report of the injured Gaurav Shukla, dated 10/09/2012 at 10:30 PM, one circular 1 cm X 1 cm depth was proved on medial aspect of right thigh 8 cm above right knee and kept under observation. Advised X-ray is shown. The mode and manner of the assault, as stated by the injured in testimony before the court, is not in consonance with the injury report, as he stated that the coaccused fired two shots at him indiscriminately, but only one injury is found on his person, which is on non-vital part. The depth of the injury is not shown and the dimension is very small. Thus, there is no medical evidence that this injury was in any manner, dangerous to life in the case. According to the injury report, the case cannot travel beyond realm under Section 324 IPC. P.W.2, the injured has stated that target was his brother, Sushil Shukla.

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Learned counsel for the appellant submits that according to prosecution version and the evidence of witnesses, the role assigned to the appellant in the incident is that he was driving the motorcycle on which the main accused, Nirmal Kumar Srivastava, alias Rupesh, was pillion rider and this Nirmal Srivastava, alias Rupesh Kumar, against whom it is alleged that he had opened fire at Gaurav Shukla, who sustained some firearm injuries on his thigh. The appellant has not been assigned any role either in the FIR or in the evidence of witnesses in causing injury to Gaurav Shukla .

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Learned counsel for the appellant also submits that the main accused, Nirmal Srivastava alias Rupesh Kumar has already been granted bail by this Court vide order dated 26.03.2026 passed in Criminal Appeal No. 419 of 2026. Thus, the case of the appellant, for the purpose of bail, stands on better footing than that of co-convict, who has already been released on bail.

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He further submits that the appellant has been assigned criminal history of 19 cases, including the present one. Out of 18 cases, he had been acquitted in 11 cases and in 2

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cases, he was on bail by the competent court and 3 cases are of preventive nature, in one case, he has been discharged by the order of court and in one case, he has been chargesheeted. The appellant has explained his criminal history in paragraph 29 of the bail application as well as paragraph 27 of the rejoinder affidavit.

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He also submits that the punishment awarded to the appellant is exhorbitant against the dictum of the Supreme Court in the case of Amit Rana Alius Koka and another versus the State of Haryana , reported in (2024) 15 Supreme Court Cases 42 and Ganesan versus the State of Tamil Nadu reported in ( 2025) 4 Supreme Court Cases 231.

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Per contra Learned A.G.A. for the State as well as learned counsel appearing for the first informant opposed the prayer for bail of the appellant and submitted that the appellant was sharing a common intention with Nirmal Srivastava, alias Rupesh Kumar, who fired shot at the injured, resulting in a firearm injury on his thigh. The learned trial court has rightly convicted the appellant as well as the co-convict. The prosecution has successfully proved guilt against the appellant beyond a reasonable doubt. He is a man of criminal antecedents. However, he did not dispute that the role of firing has not been assigned to the appellant.

¶27

Considering the rival submissions of counsel for the parties, the totality of facts and circumstances of the case, the nature of the offense, the nature of the allegations, the case law cited above and the fact that the appellant is not a previous convict, and the injured suffered a firearm injury on his right thigh, which is not a vital part and also keeping in view its small dimension and there being no wound of entry or exit therein and the fact that the applicant was released on bail during trial and there is no allegation against him regarding misuse of liberty of bail, the appeal is not likely to be heard in the near future due to huge backlog of cases without expressing any opinion on the merits of the case, I am inclined to enlarge the appellant on bail during the pendency of the appeal.

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Let the appellant, Triyugi Narayan Gupta , involved in aforesaid case be released on bail on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned subject to deposition of 50% of the fine amount imposed by the trial court at the time of his release along with following conditions:-

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(i) The appellant shall cooperate in the disposal of appeal without seeking unnecessary adjournment.

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(ii) The appellant shall not indulge in any criminal activity or commission of any crime after being released on bail.

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In case of breach of any of the above conditions, it shall be a ground for cancellation of bail.

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As soon as personal bonds and sureties are furnished, photocopies of the same are directed to be transmitted to this Court forthwith by the trial court concerned to be kept on record of this appeal.

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As regards fine, the appellant is directed to deposit half of the amount of fine with the trial court before his release from jail pursuant to present bail order and remaining half of the fine shall be stayed during pendency the appeal.

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Order of memo of appeal

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16 List the appeal in due course for hearing alongwith Criminal Appeal No. 419 of 2026.

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April 10, 2026 dk/

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(Ram Manohar Narayan Mishra,J.)

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Digitally signed by :- DEVENDRA KUMAR High Court of Judicature at Allahabad, Lucknow Bench

Triyugi Narayan Gupta v. State of U.P. Thru. Prin. Secy. Home Lko.

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Triyugi Narayan Gupta v. State of U.P. Thru. Prin. Secy. Home Lko.

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